2605(f), is common question of law and fact that Mr. Robinson and the class members would all be required prove in their individual cases in order to qualify for statutory damages. P. 23(a)(1). 1024.41(a). Accordingly, Nationstar's Motion for Summary Judgment will be granted as to the MCPA claims under sections 13-301 and 13-303. 1 Nationstar later conceded that at the time the Robinsons submitted their application, it had not yet updated its systems to comply with Section 1024.41. For example, Nationstar's own internal procedures reveal that when a loss mitigation application is received, a processor reviews it to determine if all required information and documents have been received, and enters one code, specifically "code HMPC" in LSAMS signifying "Financial Application Complete," and a different code, specifically "code HMPA," signifying "Financial Application Incomplete." A complete loss mitigation application is "an application in connection with which a servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower." Id. 20-cv, -2202, 2021 WL 4462909, at *1 (S.D. Law 13-316(c), which requires a response to a mortgage servicing complaint or inquiry within 15 days. Nationstar also argues that Oliver's report should be stricken as unreliable under the Federal Rules of Evidence and Daubert. 2019) (noting that the purpose of certifying a class "is not to identify every class member at the time of certification, but to define a class in such a way as to ensure that there will be some administratively feasible [way] for the court to determine whether a particular individual is a member at some point" (internal citation omitted) (quoting EQT Production Co. v. Adair, 764 F.3d 347, 358 (4th Cir. While Mr. Robinson signed the promissory note ("the Note"), the deed of trust ("the Deed"), and the balloon payment rider for the 2007 loan, Tamara Robinson ("Mrs. Robinson") signed only the Deed and balloon payment rider and did not sign the Note. In response, on May 30, 2014, Mr. Robinson sent Nationstar the exact same application that he had submitted on March 7, 2014. R. Civ. Since there is no genuine issue of material fact as to whether Nationstar violated subsection (h), summary judgment will be entered for Nationstar on that claim. 2010). 1994) (noting that a single common issue is sufficient to meet the commonality requirement). Order at 2, ECF No. 14-cv-10457, in the U.S. District Court for the Northern District of Illinois, Eastern Division.. Join a Free TCPA Class Action Lawsuit Investigation. 2001) (striking expert testimony because of a contingent fee arrangement), aff'd, 43 F. App'x 547 (4th Cir. 1976) (holding that while it may be unethical for a lawyer to testify on behalf of a client as an expert, "it does not necessarily follow that any alleged professional misconduct" would require exclusion of the testimony because the rules of professional conduct do "not delineate rules of evidence"); United States v. Fogel, 901 F.2d 23, 26 (4th Cir. Based on his experience and review of deposition transcripts of Nationstar employees, Oliver asserts that Nationstar has computerized data from which RESPA violations may be identified, not least because Nationstar must be able to demonstrate its compliance with RESPA to regulators. Nationstar's criticism that Oliver failed to use the correct data field to identify the date when a loss mitigation application was complete, and failed to consider the timing of application relative to the date of scheduled foreclosure sale, ring hollow because Nationstar provided to Oliver only limited data fields, which did not contain clear field names or definitions. This is not the first time Nationstar has been the subject of federal and state investigations. See Farmer v. Ramsay, 159 F. Supp. Filed by Janie Robinson. The Federal Rules of Evidence do not prohibit these kinds of arrangements. When each event occurseither the mailing of a letter or the changing of a code or substatusthe date is recorded in the databases. The comments to that rule state that the "common law rule in most jurisdictions is . A letter noting receipt of the application is automatically generated and sent to the borrower, and a Nationstar employee checks the application's documentation to determine if it is complete based on a checklist. Deiter, 436 F.3d at 466-67. Gym, Recreational & Athletic Equip. Subscribe to our free newsletter right now. Code Ann., Com. At this stage of the proceedings, the Court must rely on facts in the record, and not assertions in the pleadings. 12 U.S.C. Id. Class Cert. 2014))). Md. Nationstar will need to enhance its policies and processes around how it handles consumer complaints, performs escrow analyses and conducts audits, for example. 89, 90, ECF No. 164. The Nationstar Mortgage Unwanted Phone Calls Class Action Lawsuit is Wright, et al. 1990) (citing Universal Athletic favorably for this proposition). Accordingly, Nationstar did not send the Robinsons an acknowledgment letter within five days stating that it had received the application, as required by Regulation X. For a class action brought for violations of Regulation X, a servicer is liable for "actual damages to each of the borrowers in the class" and, upon a finding of a "pattern or practice" of noncompliance, statutory damages amounting to a maximum of $2,000 per class member up to a total of the lesser of $1 million or one percent of the servicer's net worth. "Mortgage servicers are entrusted with handling significant financial transactions for millions of Americans, including struggling homeowners. For the requirements that hinge on the timing of a communication or response, Oliver's methodology consists of using Nationstar's data from the LSAMS and FileNet software applications relating to a sample of 400 loans to identify the dates when certain events occurredsuch as the filing of a loan modification application, when a loan modification application became complete, and the sending of an acknowledgment or decision letter to a borrowerand then counting the days between the dates to assess whether a RESPA timing requirement was satisfied. 2605(f)(1)(A); see 12 C.F.R. The Nationwide Class and the Maryland Subclass are ascertainable and satisfy the Rule 23(a) factors. Once the documents are received, the Remedy Star substatus and LSAMS code are changed again to mark the application complete. Because such information is stored electronically and based on objective criteria, the members of the class will be ascertainable without significant administrative burden. That provision provides, in parallel, that a loan servicer which does not comply with Regulation X is liable "to the borrower." JA 130. The Class is represented by Rafey S. Balabanian of Edelson PC. Finally, to the extent that Oliver did not execute his stated methodology for identifying damages, that limitation is again based in part on Nationstar's failure to make relevant data available to him. The first of these prerequisites is that the class must exist and be "readily identifiable" or "ascertainable" by the court through "objective criteria." Proof of these claims requires a showing of the dates that an application was received, an acknowledgment letter was sent, an application became complete, Nationstar sent a decision letter to the borrower, and a foreclosure sale is scheduled. R. Civ. Finally, while Nationstar presented arguments for why the Robinsons have not shown damages as to most of the asserted categories, it did not advance any argument for why the interest damages claimed by the Robinsons were not attributable to Nationstar's Regulation X violations and thus is not entitled to summary judgment on that issue. Sept. 2, 2015). 2003). 2010) (holding that a plaintiff who "was not a borrower or otherwise obligated on the . 1024.41(d). Robinson et al v. Nationstar Mortgage LLC, No. 8:2014cv03667 - Justia Law J. When considering whether expert testimony is reliable or should be excluded, the court considers the following factors: "When an expert's report or testimony is 'critical to class certification,'" the district court "must make a conclusive ruling on any challenge to that expert's qualifications or submissions before it may rule on a motion for class certification." 1993) (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). For example, in EQT, the court concluded that a proposed class of all individuals who owned an interest in a gas estate was not ascertainable because the actual owners could be determined only through an individualized review of land records. Portland, OR 97208-3560. If the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, then class certification is appropriate. Jennings' office said that these new standards are more robust than existing law and will be in place for three years starting in January 2021. Id. PDF PUBLISHED - United States Court of Appeals for the Fourth Circuit THEODORE D. CHUANG United States District Judge. The Magistrate Judge ordered Nationstar to run those scripts and return the electronic data to the Robinsons. Code Ann., Com. 1972). 2d 452, 468 (D. Md. Reg. "[A] trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Nationstar has no process for standardizing file names. See Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56-57 (3d Cir. Id. Sept. 29, 2017); Billings v. Seterus, Inc., 170 F. Supp. The Robinsons do not address this argument in their Opposition. In support of these claims, Mr. Robinson testified in his deposition that the $141,000 in interest represents the amount that the Robinsons have been overcharged over the life of the loan. Several states also fined Nationstar in 2018 over failing to have proper procedures in place and "unfair and deceptive" mortgage modification policies. Nationstar's Motion will be denied as to this claim. After attempts to modify the loan failed, the Robinsons filed a class action Complaint against Defendant Nationstar Mortgage, LLC ("Nationstar") for alleged violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2016) ("[F]ortuitous non-injury to a subset of class members does not necessarily defeat certification of the entire class, particularly as the district court is well situated to winnow out those non-injured members at the damages phase of the litigation, or to refine the class definition. Co., 350 F.3d 1018, 1023 (9th Cir. Make your practice more effective and efficient with Casetexts legal research suite. Appellate Win Affirms $3 Million Settlement in Class Action against For the Regulation X provisions that require the servicer to communicate specific information to a borrower, Oliver's methodology involves reviewing a sample of loan files and identifying a specific communication to a borrower based on the file name. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. An expert's testimony is "critical" where it is "important to an issue decisive for the motion for class certification." The Robinsons assert, and Nationstar does not argue otherwise, that litigation regarding Regulation X is not proceeding against Nationstar in another forum. 1024.41(c)(1)(i). See id. Wesleyan Coll. at 151. Id. 125. Code Ann., Com. cause[d] damages retroactively" and "transmogrifie[d]" the costs that predate the RESPA violation into damages. Nationstar's Motion to Strike will be DENIED. Id. at 300. 2d 873, 883 (D. Md. The Deed specifies that a person who signs it but "does not execute the note" is a co-signer of the Deed in order to mortgage and convey that person's interest in the Property under the terms of the Deed, but "is not personally obligated to pay the sums secured by this Security Instrument," and her consent is not required to alter the terms of the Deed or the Note. Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. Gunnells, 348 F.3d at 429 ("[T]he need for individualized proof of damages alone will not defeat class certification."). Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. If the application is complete "more than 37 days before a foreclosure sale," the servicer may not move for a foreclosure judgment or conduct a foreclosure sale, but instead must first "[e]valuate the borrower for all loss mitigation options available to the borrower," send to the borrower "a notice in writing stating the servicer's determination of which loss mitigation options, if any, it will offer," and include a statement of applicable appeal rights. While Mr. Robinson sought to reduce his monthly mortgage payment in applying for a loan modification, his deposition testimony reflects that he understands that the present lawsuit contends that Nationstar did not process the Robinsons' loan modification application correctly. These fees allegedly violated the Fair Debt Collection Practices Act and the Washington state Collection Agency Act. The fact that each borrower must individually show damages under 12 U.S.C. Northern District of Ohio, ohnd-1:2021-cv-00452 of 0 An error occurred while loading the PDF. Where Accrued Financial addresses a different scenario with a different remedy, the Court does not find that it requires that the testimony of an expert witness paid on contingency fee basis must be excluded. 1024.41(b)(2)(i)(B) and Md. R. Civ. See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. That notice must be provided within 30 days of receiving the complete loss mitigation application. It is the plaintiffs who bear the burden of proving their claims. The public policy interest at issue was one against "stirring up litigation or promoting litigating for the benefit of the promoter rather than for the benefit of the litigant or the public," an interest not implicated in the same manner by the fee arrangement with the particular expert witness in this case. PDF United States District Court Middle District of Florida Tampa Division uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." ; 78 Fed. The use of a class action is primarily justified on the grounds of efficiency, because it advances judicial economy to resolve common issues affecting all class members in a single action. In Robinson v. Nationstar Mortgage LLC, No. After attempts to modify the loan failed, the Robinsons filed a class action Complaint against Defendant Nationstar Mortgage, LLC ("Nationstar") for alleged violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. Id. WASHINGTON, D.C. The Consumer Financial Protection Bureau (CFPB) today ordered Nationstar Mortgage LLC to pay a $1.75 million civil penalty for violating the Home Mortgage Disclosure Act (HMDA) by consistently failing to report accurate data about mortgage transactions for 2012 through 2014. Where the cost of litigation as compared to the potential recovery gives class members little incentive to bring suit, and there is little reason to individually control the litigation, a class action is a superior method to vindicate the rights of class members. Thus, Mrs. Robinson is not "obligated" to pay the amount due on the Note and therefore is not a "borrower" for purposes of RESPA. PO Box 3560. Since Mrs. Robinson may not bring a claim under Regulation X, she may not be a named class representative. To establish an MCPA violation under this provision, a plaintiff must establish that (1) the defendant engaged in an unfair or deceptive practice or misrepresentation; (2) the plaintiff relied upon the representation; and (3) doing so caused the plaintiff actual injury. Where the Robinsons, after discovery, cannot point to evidence that Nationstar did not even consider or evaluate the Robinsons for loss mitigation options, they have not established the existence of a genuine issue of material fact on the issue of false or misleading statements. Nationstar further argues that summary judgment must be entered in its favor on the Robinsons' claims under 12 C.F.R. Oliver's expert report focuses on the use of Nationstar's internal databases to determine whether Nationstar has systematically failed to comply with various requirements of Regulation X. Relevant factual and procedural background is set forth in the Court's prior Memorandum Opinion granting in part and denying in part Nationstar's partial Motion to Dismiss. Thus, the Court concludes that common computerized analysis can largely answer the question of whether Nationstar violated these RESPA provisions with respect to individual borrowers. A Scheduling Order was first entered on November 24, 2015, and the period for discovery was extended four times between November 2015 and January 2017. Finally, the Court notes that a decision to certify a class is based on whether or not a putative class satisfies the Rule 23 factors, not on a preliminary assessment of the underlying merits of the claim. As of November 22, about 2.8 million homeowners were in a forbearance plan, according to the latest research from the Mortgage Bankers Association. R. Civ. R. Civ. CFPB Takes Action Against Nationstar Mortgage for Flawed Mortgage Loan 2605(f)(2); Wirtz, 886 F.3d at 719-20, that the individualized damages inquiry would need to precede the award of statutory damages based on a finding of a pattern-or-practice of RESPA violations is a distinction without a difference: whether individual damages are shown before or after the pattern-or-practice liability, the common issues of liability predominate over the individualized questions of damages. LLCNo. Order, ECF No. A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party. or other representation . From this methodology, Oliver concluded that Nationstar failed to inform borrowers of their appeal rights in 39 percent of the sampled loans and failed to exercise reasonable diligence by improperly requested the same documentation already provided in 18 percent of the loans.

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